Justice Department Decision Could Extend Religious Hiring Rights

A Justice Department opinion published last week has renewed the debate at the center of the Bush Administration’s Faith-Based and Community Initiative – a controversy that has even made it to the 2008 presidential campaigns – over whether religious organizations should retain the right to employ only those of their own faith when the positions are funded with tax dollars. In a just-published memorandum revealing a June 2007 opinion, the Justice Department’s Office of Legal Counsel (OLC) determined that a federal grant program could exempt a Christian relief organization from a prohibition against hiring only those of its own faith under the 1993 Religious Freedom Restoration Act (RFRA). The determination meant that World Vision could keep $1.5 million in grant money, awarded in 2005, for anti-gang programs, while continuing its practice of hiring only Christians. While the opinion deals narrowly with the facts of one religious organization provided funds through one federal program, the implications of the OLC memo could be far-reaching.

The Roundtable has assembled news stories on the issue here.

10/19/2008

The Washington Post
Carrie Johnson
10/19/2008

A legal opinion allowing the Justice Department to dole out a $1.5 million grant to a Christian aid group that makes religious belief a condition of employment is shining new light on an obscure office that interprets laws across the government.

The Justice Department Office of Legal Counsel, which issued the interpretation last year to little notice, has been a target of congressional Democrats for its blessing of detainee interrogation techniques and a warrantless eavesdropping program that nearly provoked a mass resignation of top law enforcement officials four years ago.

Much of the work of the office remains secret. But legal experts predict that more rulings will be made public in the waning days of the Bush administration, as officials try to lock in policies they favor before a successor takes the stage.

Dawn E. Johnsen, an Indiana University law professor and a former acting chief of the OLC, asserted that the Bush administration's broad view of executive power and its tendency to bypass Congress made it all the more important for the next president to begin reviewing legal opinions right after the November election.

Johnsen, who handled such reviews for President Bill Clinton's transition team, said that she "definitely would put" the religious freedom opinion on a list of interpretations to be analyzed by the new president.

Faith-based initiatives have been a priority for President Bush. Sen. John McCain, the GOP nominee, supports the efforts of religious organizations to win federal grants, while his Democratic rival, Sen. Barack Obama, has indicated that at least some forms of discriminatory hiring would be impermissible were he to win the presidency.

Making wholesale policy changes, however, could be complicated by a long-standing tradition toward continuity in the office's legal rulings, said Walter E. Dellinger III, who served as head of the OLC during the Clinton administration.

In the latest opinion, lawyers concluded that World Vision, a Christian group that supports impoverished families in nearly 100 countries, could accept a $1.5 million gang prevention grant from the Justice Department's Office of Juvenile Justice and Delinquency Prevention even though Congress has barred discrimination by federal grant recipients.

World Vision won the funds to hire workers in Northern Virginia and New York for youth training, health and anti-gang initiatives. The group invoked a 1993 law, the Religious Freedom Restoration Act, that said the government could not impose "substantial burdens" on the exercise of religion.

Deputy Assistant Attorney General John P. Elwood reasoned that the group's identity would be compromised if it had to veer from its decades-old hiring practices. The Washington state group hires only people "who agree and accept its Statement of Faith and/or the Apostles' Creed," its Web site says.

The memo was posted online Tuesday and became the subject of a New York Times report yesterday. Its publication revived a debate about the awarding of public funds to religious enterprises.

Barry W. Lynn, executive director of Americans United for the Separation of Church and State, denounced the memo. "There is no reasonable way to read the history of the Religious Freedom Restoration Act and conclude it permits discriminatory hiring with tax dollars," Lynn said.

"The fight here is over a fairly narrow principle: In the program or activity being funded, must you give the job to the best person or can you use a religious test? . . . If you take money from the government, you have to obey the law."

Erik Ablin, a Justice Department spokesman, said the department "stands strongly behind the opinion, which is narrowly drawn and carefully reasoned."

Richard E. Stearns, president of World Vision's U.S. operations, said yesterday that the aid agency does not discriminate "in any way" in the delivery of services to children and families. He said that courts have ruled that private organizations retain their rights "regardless of their funding sources," and that a waiver from the anti-discrimination provisions in grants could apply to Jewish, Hindu and Muslim groups, as well.

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10/18/2008

New York Times
Charlie Savage
10/18/2008

In a newly disclosed legal memorandum, the Bush administration says it can bypass laws that forbid giving taxpayer money to religious groups that only hire staff members who share their faith.

The administration, which has sought to lower barriers between church and state through its religion-based initiative offices, made the claim in a 2007 Justice Department memorandum from the Office of Legal Counsel. It was quietly posted on the department's Web site this week.

The statutes for some grant programs do not impose antidiscrimination conditions on their financing, and the administration had previously allowed such programs to give taxpayer money to groups that only hire people of a particular religion.

But the memorandum goes further, drawing a sweeping conclusion that even federal programs subject to antidiscrimination laws can give money to groups that discriminate.

The document signed off on a $1.5 million grant to World Vision, a group that hires only Christians, for salaries of staff members running a program that helps "at-risk youth" avoid gangs. The grant was from a Justice Department program created by a statute that forbids discriminatory hiring for the positions it is financing.

But the memorandum said the government could bypass those provisions because of the 1993 Religious Freedom Restoration Act. It sometimes permits exceptions to a federal law if obeying it would impose a "substantial burden" on people's ability to freely exercise their religion. The opinion concluded that requiring World Vision to hire non-Christians as a condition of the grant would create such a burden.

But several law professors who specialize in religious issues criticized the administration's argument as legally dubious. Among them, Ira C. Lupu, the co-director of the Project on Law and Religious Institutions at George Washington University Law School, said the memorandum's reasoning is "a very big stretch."

Marty Lederman, a Georgetown University law professor who worked in the Office of Legal Counsel from 1994 to 2002, said the memorandum's reasoning is incompatible with Supreme Court precedent. He pointed to a 2004 case, in which the court said government scholarships that could not be used to study religion did not substantially burden recipients' right to practice their religion because they could still study theology with their own money.

In the same way, Lederman said, World Vision is free to have an antigang program that hires by faith without using taxpayer money.

The Justice Department "stands strongly behind the opinion, which is narrowly drawn and carefully reasoned," Erik Ablin, an agency spokesman, said in an e-mail message. "Most of the criticisms that have been outlined against the opinion are thoroughly addressed in the opinion itself. Each of them lacks merit."

Carl H. Esbeck, a University of Missouri law professor who has been an architect of the religion-based initiative movement, also defended the opinion, saying the Religious Freedom Restoration Act compelled the department's conclusion. "I understand that liberal law professors don't like this," he said. But, referring to World Vision, he asked, "Why should they be denied the opportunity that everyone else has to compete for funding simply because of their religion?"

Under the Bush administration, the Office of Legal Counsel, which issues interpretations of the law that are binding on the executive branch and often rules on matters that are difficult to get before a court, has drawn sharp criticism for issuing opinions that provide legal cover for controversial policies preferred by administration officials.

In 2002, for example, the office issued a secret legal opinion that signed off on the use of harsh interrogation techniques despite a statute and treaties forbidding torture. The memorandum's legal reasoning was harshly criticized by legal scholars after it was leaked to the public, and the Justice Department rescinded it.

Christopher E. Anders, senior legislative counsel to the American Civil Liberties Union, said he was alarmed by the 2007 memorandum's conclusion that the government does not have a "compelling interest" in enforcing a federal civil rights statute.

"It's really the church-state equivalent of the torture memos," Anders said. "It takes a view of the Religious Freedom Restoration Act that allows religious organizations to get federal funds without complying with anything."

Lupu did not go that far, but said the opinion made "an aggressive reading of 'substantial burden' in a way that is not consistent with what courts and other agencies done in the past, and it is designed to serve the president's political agenda."

The next administration would be free to rescind the memorandum. Both major party nominees for president, Sens. John McCain and Barack Obama, have said they would continue allowing religion-based groups to participate in federal grant programs. But Obama has also said that grant money should not be used on programs that discriminate against people based on their religion — a condition McCain has not embraced.

Bush, whose strongest political base has been religious conservatives, has made lowering barriers to government financing of such groups a priority.

In January 2001, Bush's first two executive orders created an Office of Faith-Based and Community Initiatives in the White House and in five federal agencies, telling them to ease the way for church groups to win grants for social work, like homeless shelters, addiction treatment or after-school programs.

Bush also asked Congress to make it legal for religious groups to win grants even if they discriminate against people of other faiths when hiring for taxpayer-financed positions. He said it was not fair to force them to give up their identities in order to compete for grants. When Congress failed to pass such a law, Bush issued an executive order that made the changes on his own for most federal programs.

But statutes trump executive orders, and a few grant programs — including the one involving World Vision — had independent antidiscrimination requirements.

Since then, some social conservatives have advanced the view that the Religious Freedom Restoration Act might be used to nullify such restrictions.

In 2003, the Department of Health and Human Services issued a regulation for a mental health grant program that advanced such a view, and in 2007, the Justice Department quietly changed its grant application rules to reflect its view. The changes attracted little attention.

But the release of the 25-page opinion this week is the "most elaborate and carefully reasoned effort by the Bush administration to justify its conclusion" that such grant conditions are legally obsolete, Lupu said.

Barry Lynn, president of Americans United for Separation of Church and State, said he hoped the opinion would not stand. "The Bush administration has been trying to allow religious recipients of tax dollars to discriminate in hiring," he said. "No Congress intended that. The Constitution does not permit it. And this memo is just one more example of this administration subverting congressional and constitutional intent in pursuit of a forbidden goal: discrimination in hiring."

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